- Sears, Roebuck & Co
Jury rendered verdict for the Df - denying the Pl relief from
Harrisons ring and fifth fingers were cut off after his hand
slipped from the on-off switch and entered it an opening making
contract with cutter blades.
Expert said this could not happen for two reasons.
The design of the jointer makes it difficult for somebody get
ones fingers into the opening unintentionally.
The angle and location of the cuts on Harrisons fingers were
inconsistent with x-rays.
The Trial court objected to the Pl - cross-examining the expert
with regard to a subsequent design change eliminating the
Pl sought to have admitted the subsequent removal of the opening
Hyde testified on direct examination that, "there [was] no
hazardous area left exposed next to the switch where you are
going to unintentionally get your hand in there and contact the
New Jointer without openings
After this claim arose, Hyde participated in designing the NEW
jointer without an opening which allegedly injured Harrison.
Pl - You cannot trust this witness!!!
The admission use to undercut qualifications and the to impeach
Hydes testimony are closely related.
FRE 407 does not require the exclusion of evidence of subsequent
measures when such evidence is being offered exclusively for
Reversible error has been found when subsequent remedial
evidence has been excluded when offered for impeachment
Not to be used as a subterfuge
Fed. R. Evid. 407's impeachment exception must not be used as a
subterfuge to prove negligence or culpability
When admitted subsequent remedial evidence for impeachment
Cases which have admitted subsequent remedial measure evidence
for impeachment purposes
tend to involve a greater nexus between the statement sought to
be impeached and the remedial measure than the case
For example, in Anderson v. Malloy, subsequent remedial measure
evidence was admitted to impeach statements that defendants had
checked the area prior to the alleged accident and done
everything possible to make it safe.
Trial judges have discretionary authority under FRE 403.
Because Hyde's statement and qualifications could only have been
indirectly impeached by
the subsequent remedial measure evidence and because the nature
of the evidence was highly
prejudicial, the trial judge did not abuse his
considerable discretion in excluding such evidence.
For these reasons, the judgment of the district court is